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Monday, August 20, 2012

Medical Boards Worried About FTC North Carolina Dental Ruling

I knew this would happen as the various state boards would recognize the assault by the federal government on their autonomy.

Physicians are urging a U.S. appeals court to overturn a Federal Trade Commission ruling that doctors say strips medical boards of their right to regulate medicine.

The appeal comes after a North Carolina dental board was found to have violated federal antitrust regulations by attempting to stop nondentists from operating teeth-whitening centers. The FTC said the board is not exempt from antitrust scrutiny because its members are private professionals who compete with others in the marketplace.

If the FTC decision stands, the ruling would significantly imperil state regulation of medicine and put the public’s health at risk, doctors said.

“It would be disruptive to the proper regulation of medicine nationwide,” said Stephen Keene, general counsel for the North Carolina Medical Society. “The notion of having government agency bureaucrats regulate a learned profession is not good for the public. There would be no meaningful oversight of practitioners to deliver safe medicine.”

The case started when the North Carolina State Board of Dental Examiners received a complaint that unlicensed teeth whiteners were providing services at malls amid unsanitary conditions. From 2006 to 2009, the board issued cease-and-desist letters to the teeth whiteners, warning them about a state ban against stain removal by unlicensed practitioners.

The teeth whiteners complained to the FTC, saying the board’s actions were anti-competitive. An FTC administrative law judge found the board’s conduct constituted an unreasonable restraint of trade and ordered the dental board to stop.

The board argued that its conduct was protected from antitrust oversight by a legal doctrine that applies to some state board conduct. The doctrine exempts from antitrust scrutiny state agencies that are actively supervised by the state.

However, in a 2011 decision, the FTC said the dental board was not covered under the doctrine. The board falls outside such protections because it is made up of market participants and is not actively supervised by a sovereign part of the state government, the FTC said.

The dental board appealed to the 4th U.S. Circuit Court of Appeals. Oral arguments are expected in the fall. The North Carolina Medical Board said it is monitoring the case.

As I said at the time, this FTC decision is an overreach and would eventually be overturned by the appeals courts. The case has dragged on so long that it is likely that there will be a new President and new FTC composition before the matter is finally adjudicated - probably by the United States Supreme Court.